Policy shift by D.A. stirs controversy

Inquirer Exclusive: Williams is pushing for deeper investigations, but bringing fewer cases to court. He says the result is stronger cases.

By Craig R. McCoy and Allison Steele, Inquirer Staff Writers

Posted: August 20, 2012

The bodies lay next to each other, riddled with bullets.

Detectives quickly built a case, putting a narrative together from a suspect's cellphone and two witnesses. They saw the case as a drug deal gone bad.

To them, the investigation was over. They were ready to arrest.

In another case, a man choked and punched his girlfriend so hard that her baby fell from her arms onto a concrete SEPTA Elevated platform.

Again, investigators soon viewed their work as wrapped up. They were ready to move on once they took a statement from the victim.

But in these cases, and hundreds more over the last two years, Philadelphia prosecutors demanded more. More witnesses, more documents, more phone and video records, more searches. In sum, more evidence, and better evidence.

That mandate, imposed by District Attorney Seth Williams when he became Philadelphia's first new district attorney in nearly two decades, is designed to make cases stronger in court. And so far, statistics show that a greater proportion of cases are advancing to trial.

But Williams' policy shift has also sown tension between prosecutors and police. Critics say the new system is frustrating at best, and at worst, risks permitting dangerous people to remain free and strike again. That's exactly what happened in one 2010 case.

"Short of getting caught with a smoking gun in your hand, it's tough to get them to arrest," said John McNesby, president of the Fraternal Order of Police local. "They want a sure thing."

And the overhaul of charging has been accompanied by another dramatic trend - Williams is filing far fewer cases.

His office last year brought 17 percent fewer violent-crime cases than the number brought in 2009, the last year Lynne M. Abraham was in office as D.A.

In an interview last week, Williams said the overhaul of how prosecutors file cases has been a "huge success," paying off with improved cases and charges that better fit the crimes.

"It's my job to decide who is charged with what," Williams says. "We're not going to throw everything against the wall and see what sticks."

But though Williams pledged in his campaign that he would raise the city's dismal conviction rate, he has yet to compile or make public this bottom-line statistic for measuring his performance.

In a 2009 investigative project on the Philadelphia criminal justice system, The Inquirer reported that the D.A.'s office under Abraham had the lowest conviction rate among 40 large urban counties. The newspaper found that nearly two-thirds of Philadelphia defendants charged with violent crimes walked free of all charges.

Williams said software problems have slowed the accumulation of conviction data during his tenure.

"I'm as frustrated as you are," he said. "We want to do it, but we want to be right and accurate."

A new way to prosecute

There is no doubt that two years after Williams took office, he's implemented a whole new approach to how investigations and prosecutions unfold in Philadelphia.

The unit has also imposed new investigatory "protocols" for detectives: crime-by-crime checklists to guide them. The goal, prosecutors say, is to make sure the best possible evidence is in hand before they decide what charges to approve - or whether to charge at all.

When Williams' staff doesn't believe the evidence in a case is strong enough to result in a conviction, it asks police to do more work.

But that has meant months-long delays before some arrests are made, even in violent crimes.

Eugene Blagmond, a top local FOP official, said Williams may have overreached.

"It's an abrupt change from what happened with Abraham. She charged everyone with everything," he said. "When someone is going too far in one way, sometimes you then get someone who goes too far in the other direction. You have to strike a balance."

Still, figures from Philadelphia Municipal Court show the rate at which judges are holding violent-crime cases for trial has climbed steadily since Williams took office.

In 2009, judges held 47 percent of such cases for a full trial. By early this year, that rate had climbed to 53 percent.

But Williams' staff filed only 8,734 murder, rape, robbery, and aggravated-assault cases last year. That's almost 1,800 fewer than in 2009.

During the first two years of Williams' tenure, reported violent crime in Philadelphia fell 5 percent. But murders and shootings have spiked sharply in recent months.

Williams said his office's caseload reflects more accurate charging decisions, something he says is restoring credibility with judges and the public.

"We were overcharging things for years," he said. "We're not trying to get rid of things. My goal is to charge the right things."

Abraham, Philadelphia's top local prosecutor for 19 years, declined to comment for this article. But in 2009, asked about her low conviction rates, she warned that prosecutors could pump up their score by taking only sure things.

"You can make those numbers say anything you want," Abraham said.

Police-prosecutor split

Philadelphia prosecutors first took over the charging function in 1982 under the tenure of then-District Attorney Edward Rendell. Four assistant district attorneys reviewed cases out of a 60-foot-long trailer towed and left in the parking lot of the Roundhouse, police headquarters at Eighth and Race Streets.

Almost immediately, there was discord between police and prosecutors. A few months into the new program, Rendell called the police commissioner a "jerk" and "certifiable" after the commissioner complained about the office's decisions. Police named the trailer "Starship Rendell."

When Williams began his overhaul, there was a new round of infighting.

Leaders at the top of both agencies now say relations have improved greatly since the first months of the Williams administration.

But that message is not shared by every officer on the street: Many detectives say they routinely disagree with decisions made by the charging unit, or by the separate group of prosecutors who review homicide cases. These sources asked not to be named, fearing reprisals for picking an intra-agency fight.

"They want to go to court and hit a home run," one veteran detective said. "But sometimes you have to take your chances. Even if the case goes nowhere, at least the person was off the streets for that period of time, and the commonwealth took a shot."

In the words of another veteran, "There's no justification for delaying an arrest when you're talking about a killer."

Building the charging unit

Williams, who worked for a decade as a staff prosecutor under Abraham, is caustic about the charging unit under his predecessor. He described it as low-status "dungeon" manned by rookies right out of law school with zero hours in court, or by "knuckleheads" - veterans in need of punishment.

"People were put in the charging unit who had shown bad judgment," he said. "If you got into a shoving match with folks down at the FOP bar or you danced too close to the judge's wife, you might end up in the charging unit."

Before Williams took office, the unit had a staff of six prosecutors. He fired the aide in charge, more than doubled its size, and moved it out of its quarters in the basement of the main courthouse.

According to Williams and his aides, the former charging attorneys were inexperienced and overworked. They "rubber-stamped" some 60,000 arrests a year, with virtually no assessment of the evidence or the odds for a conviction, he and the aides said.

The unit is currently staffed by 14 prosecutors, all with trial experience.

Now, Assistant District Attorney Jodi Lobel, the first chief of the revamped unit, said, "We can look at the paperwork, see into the future to what we need down the road for trial, from the start."

During her 20 years as a prosecutor, Lobel said she saw a system mired in delay, rough on victims, and lenient on criminals.

"It was so frustrating," Lobel said. "For so many years we would look at file after file after file and say, 'This case never should have been here.' Or, 'This case has an alibi.' Or, 'This case has no witnesses.' Or 'This guy got bench-warranted for six years and it got thrown in a pile.' It was quite obvious to us what needed to be done."

Frequently, prosecutors said, the terse summaries in police reports would gloss over a case's weaknesses, such as the failure of a witness to make an identification.

"We started to see that what was in the initial paperwork didn't necessarily translate to what witnesses were actually saying," said prosecutor Kirsten Heine, who has succeeded Lobel as unit chief.

All too often, the flaws only became apparent when it was too late to fix them.

"There's nothing more frustrating than getting to trial, reading that statement, and you can't do anything about it," Lobel said.

To address these issues, the prosecutors in the unit now review the raw investigative material - victim and witness statements, interviews with suspects, items gathered at the scene, and so on.

Lobel and Heine, meanwhile, began huddling with detectives to draft the new investigative protocols.

At one point, Lobel and others traveled to the Roundhouse to brief a packed and tense gathering of police brass. They faced a skeptical sea of "200 white shirts."

"We could tell immediately that they were opposed to everything we were going to suggest," Lobel recalled.

During the meeting, though, the commanders began to warm to the logic of the transformation.

"I feel like everyone saw the light," said veteran prosecutor Laurie Malone, head of the office's pretrial division. "We walked away from that meeting with everybody shaking hands."

"It did require us to step up our game," he said, referring to the new demands from the charging unit. "And our investigators are up to the task."

He added: "You have to look at new ideas. Things weren't working the way they were."

Police Lt. Jackie Daley, an attorney who works in the department's training division, is another supporter. She helped train more than 3,700 officers - more than half the force - in the new protocols, teaching them that an investigation "doesn't stop with the work on the street," and that they must document everything to make sure prosecutors are ready for the courtroom fight.

"If they're upping their game, we have to up our game," she said.

More detailed cases

In the interview, Williams said that the office under Abraham brought cases in which the charges were unjustified by the facts - so much so, he said, that judges routinely threw out the felonies in dockets, leaving only misdemeanors.

Prosecutor Edward McCann, Williams' top deputy, said the new policy on charges had helped restore the office's credibility among judges. Many, he said, believed that the office would overcharge as a way of squeezing a defendant to plead.

"That's the best benefit derived from changing the charging unit," McCann said. "Our credibility has been enhanced significantly in the court system. We're supposed to do things for the right reasons."

Williams insists that his staff approve arrests even when detectives haven't been able to overcome entrenched Philadelphia issues like witness fear or hostility.

"We take a lot of weak cases," he said. But "my job is not to be just mediocre - or to bring crappy-quality justice to Philadelphia. We have to be excellent. That's the goal."

Court figures provide a glimpse into how decisions have changed under Williams. Even as he was cutting the number of aggravated-assault cases filed in 2011 from the figure in 2009, his staff boosted the number of simple-assault cases.

In a handful of cases, the office has simply refused to bring any charges at all. This "declination" rate hit perhaps 2.5 percent in 2010, a shakedown year for reform, but has since fallen to 1.5 percent or so, according to Williams' aides.

As he overhauled charging, Williams has also pushed to resolve more cases sooner after arrest. Plea-bargaining has surged. In 2009, about 6,200 defendants pleaded guilty in Common Pleas Court. Last year, the figure was 8,300.

Alfred Blumstein, a criminologist at Carnegie Mellon University in Pittsburgh, said it was understandable that Williams would bring far fewer cases, given the D.A.'s criticism of the system.

"His job is finding those cases that he can responsibly convict, rather than just charge," he said.

Williams also is seeking to distance himself from Abraham, Blumstein said.

"She was excessive in making errors of failing to convict," he said. Williams "might be excessive in failing to prosecute. And both are always going to occur."

He said he expected Williams' conviction rate would be high but expressed surprise that Williams has not yet compiled that information.

"That is the test of his strategy of not pursuing cases where the evidence is not strong," he said.

Benford case, an example

As prosecutors and police debate when and what to charge, they know their decisions can have life-and-death implications. Early on in the Williams administration - at a time when the rules of engagement were still in flux - this was borne out in the story of Stephen Benford.

How the charging prosecutors handled Benford has become notorious among critics of the D.A.'s office, including both police and some prosecutors on Williams' staff.

By most accounts, Benford was an exceptional case: that of a barroom brawler who escalated to become a killer.

On Feb 1, 2010, Benford, then 23, was still on parole for trying to run over a state police trooper in the Poconos when he ended up at Mako's, a now-shuttered dive bar on the corner of Third and South Streets.

In a fight over a swiped beer, Benford began punching another patron, Zackery Radtke. When a friend of Radtke's, Delwin Pinkins, interceded, Benford turned on him, pulled a switchblade and sliced Pinkins' hand and leg.

"We looked each other in the eye for a second," Pinkins, now 29, said in an interview. "I felt the knife going deeper and deeper into my hand. Once I looked him in the eye and realized what I was dealing with, it was like, what did I get myself into?"

Benford fled after the stabbing, riding away on a bicycle before police arrived.

After Pinkins came home on crutches, he learned his attacker's name from someone who knew Benford and said he was a regular at Mako's. Pinkins went online, found the bar's Facebook page, and ultimately recognized Benford in photographs.

Satisfied, he printed out the pages and gave them to the detectives who came to talk to him two weeks later. On Feb. 15, 2010, Pinkins identified Benford from an array of eight mug shots.

"To be honest, it was a slam-dunk case," Pinkins said.

Police agreed. They asked the charging unit to approve an arrest warrant.

Prosecutors wouldn't approve one.

Attorneys who reviewed the case had concerns. Had Pinkins made an independent identification, or was he unduly influenced by the friend who gave him Benford's name?

"It was unclear whether or not this ID was going to stand up in court," Lobel said, reviewing the office file.

Two assistant district attorneys, on separate occasions, asked detectives to do more investigating, prosecutors said.

According to Radtke, the man originally attacked, they did just that. Radtke told The Inquirer that two detectives came to his house not long after the incident, and asked him, also, to look at a photo array.

"I identified the guy," Radtke said.

But that information - a second, independent identification of Benford - never made it into the case file, according to prosecutors.

Lobel, who reviewed the case file in a recent interview, said the office was unaware that police had indeed found a second witness. A police report on file with prosecutors merely stated that Radtke had heard that the attacker had the first name of "Steve." The report makes no mention of Radtke's identification.

Lobel, with a visibly heavy sigh, said the file suggested police hadn't followed up.

"For whatever reason," she said, "whether it was volume or work schedules . . . whatever it was, it wasn't done pursuant to our requests.

"And, unanticipatedly," Lobel added, Benford "met Gina Schickling."

Regina "Gina" Schickling, a 22-year-old native of Northeast Philadelphia, began dating Benford in late 2009. In June 2010 - four months after the stabbing at Mako's - she and Benford moved into an apartment in Kensington.

On July 1, 2010, Benford, drunk and high on crack, attacked Schlicking, stabbing her 59 times with a switchblade. The next day, he dumped her body behind a New Jersey property owned by his parents.

Police found Schickling's corpse days later. Under interrogation, Benford confessed to not only the killing but also to the bar stabbing. He was charged right away - with both crimes.

Lobel prosecuted. Benford pleaded guilty to both crimes. He's now serving up to 92 years.

Schickling's mother, Therese Curran, declined to comment for this story. At Benford's sentencing, she read a statement that cited her daughter's creativity, loving nature, and joy in learning. And she was upset at what she saw as missed chances to stop Benford.

"If he had not been let out early on parole, if he had been drug-tested even once while on parole, if he had been picked up for stabbing another person five months before he murdered my girl, he would not have been on the street and she would still be alive," Curran said then. "The system is flawed and failed to protect my daughter."

The stabbing happened weeks after Williams had taken office, and Lobel and her team were in the earliest stages of changing the way investigations were done. They wanted to hold their ground on the Benford case, she said.

"We were at that balancing stage where we didn't want to back down and say, technically, maybe, there's enough to charge this case, but if we charge it now and then ask you to look up the Facebook page and talk to other witnesses, we're taking the chance that it's not going to be done," Lobel said.

"That was during the very beginning, when we were trying to establish these protocols. . . . We wanted the case to be strong from the beginning."

Since 2010, Heine said, the communications system used by the D.A.'s office has been updated so that it's easier for prosecutors and detectives to see each step that is taken in a case. Requests for more investigation are now sent to police supervisors.

"Sometimes a supervisor will now call back, say, 'This can't be done for XYZ reason. Would you be willing to approve as is?' And we make a decision about it," she said.

Asked if the case illustrated a missed opportunity, Lobel and other top prosecutors stopped short of saying the office had erred.

"It's very unfortunate, and hindsight is 20/20, but you deal with this every day on every case," Lobel said. "You just can't anticipate when something horrible is going to happen, as much as you try to prevent it."

Asked the same question, Radtke, the witness to the earlier stabbing, didn't hesitate.

"I think they failed completely," he said. "I felt like it was very sad and tragic that they had an opportunity to get this guy, but they failed."

Stronger cases

When prosecutors and detectives collaborate well, the result can be a breakthrough.

Consider the El attack in North Philadelphia on the woman with a baby. In that February 2012 assault, authorities say that Leanus Smith, 20, strangled, punched, and threw his girlfriend down while she was holding her 10-month-old son. The baby scraped his head on the platform.

When the case was submitted for charging, Assistant District Attorney Marian Braccia - an expert on domestic abuse - urged detectives to buttress the woman's version with other evidence.

Within a day, detectives got SEPTA surveillance video documenting the assault. In a memo, prosecutors noted, "This evidence will allow us to proceed with the case even if we lose the cooperation of the complainant" - a common problem with such cases.

In fact, court records show that the witness has three times failed to appear to testify against Smith.

In many situations, prosecutors push for evidence that moves cases past he said/she said standoffs.

In another example cited by prosecutors, pressure from the D.A. prompted detectives to build a stronger case of witness intimidation against a brother and sister.

As Edward Harvey and Keith Ebron ran from the scene of robbing a South Philadelphia gas station on July 26, 2011, Ebron ran into a woman he knew from the neighborhood. His mask slipped, and she recognized him.

Detectives quickly tracked Harvey, then 45, and Ebron, 30, to a home that contained their masks, the stolen money, and the weapon they brandished.

After their arrests, authorities said 23-year-old Brandy South, Harvey's sister, went to the witness' house and said she knew the neighborhood woman had "ratted" on the robbers.

In fact, the woman never had identified the robbers to police; authorities made the robbery arrest on other evidence.

Detectives wanted to arrest South for intimidation based on the victim's statement, but the charging unit pushed them to listen to tapes of the suspects' calls from prison. There, they heard Harvey incriminate himself in the robbery - and also direct South to threaten the witness.

"Tell [the witness] don't go to court," Harvey said.

On tape, South replied, "She ain't going to show up to court, I already talked to her. . . . She knows I will f---ing kill that bitch."

Harvey pleaded guilty in both cases; Ebron pleaded guilty in the robbery. South is awaiting trial.

Not-so-strong cases

Not every case can get stronger.

On March 2, 2011, Andrew Foy, 23, showed up at a West Philadelphia house, ostensibly to buy two pounds of marijuana for $1,900, 2011. While reaching into his pocket, supposedly for money, he pulled a gun and fatally shot Kadrian Wilson, 28, and Conroy Smith, 43, authorities say.

Foy allegedly dropped his cellphone near the murder scene. With evidence extracted from that, and interviews with two witnesses, detectives contended the case was ready for an arrest.

Of the two sources talking to police only one was an eyewitness, who fled after watching Foy pull his gun. Prosecutors pushed detectives for more.

In the meantime, Foy was free. And on Sept. 2, 2011, police say, Foy, drunk and carrying a gun, assaulted a woman in West Philadelphia, hitting her in the face and stealing her phone. At the time, she was eight months pregnant with his child.

Again, prosecutors declined to authorize an immediate arrest. They instructed detectives to obtain a search warrant in hopes of finding Foy's gun.

Five months later, with neither the robbery nor the assault cases growing much stronger, prosecutors gave the green light for warrants in both cases. They did so after a judge refused to approve any search warrant.

Foy was a fugitive until he was caught by police in West Palm Beach, Fla., last month. He's since been extradited north to Philadelphia, where he's locked up awaiting his trials.

As it happens, the lack of more evidence may doom the domestic-violence charge.

When reporters visited the woman recently at her home, she would not talk about the assault.

When asked whether she was relieved that Foy was behind bars, she said no. Asked if they had patched things up, she nodded yes.

'Work with what you have'

As prosecutors have pushed for more, some detectives on the receiving end have grown restive.

In many shootings among players in the drug trade, one detectives said, it's hard enough to get a single witness, let alone two.

Worse, when prosecutors say one witness' account is not enough, the investigator said, "it communicates to that victim or witness that they aren't credible."

Moreover, another veteran officer said, when a violent criminal is put behind bars, it can embolden other witnesses to step forward.

"They want a stronger case. If they're trying to be more like the feds, that's a good thing," the officer said. "But this is Philadelphia, and you have to work with what you have. And the witnesses are what they are. If we don't take a chance on some of these, who's going to do it?"

And delay carries risk.

In an incident from last year, a murder suspect - free while detectives followed orders to build a better case - was armed when patrol officers pulled him over for a traffic stop. The officer who stopped him had no idea that he was a murder suspect; the man resisted arrest and swung at the officer.

After the car stop, he was charged with both crimes.

When arrests in violent crimes or drug cases are delayed, witnesses who have cooperated with police might regret speaking up, fearing retribution. The suspect, meanwhile, might return to selling drugs on the same streets where the shooting took place.

"The message sent to the community is terrible," one detective said.

And in the end, prosecutors may approve a warrant based on the very evidence deemed inadequate months, or a year, before.

In their calculus, though, prosecutors say their goal was to make cases stick - and punishment potent.

Lobel said she understood that police want to get violent criminals off the street as soon as possible.

"But we don't want to get them off the street for six weeks, until the preliminary hearing, and then fail in our efforts," she said. "We want to get them off the street for a significant period of time."

McCann, the veteran homicide prosecutor who is Williams' top aide, made another point.

"The alternative is what? Go back to the way things were before?" he said.

He added that the decisions were never easy. "We're dealing with violent people," he said.

Then he added:

"I would like to think the Police Department know these decisions are made in good faith. They're not arbitrary. They may not agree with us, and we may be wrong, at the end of the day. We're human beings. But these decisions are made in good faith."

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